[1] On
5 August 1998 and at Pretoria the appellant, a 19-year old woman, was
sexually assaulted, raped and robbed by one André
Gregory
Mohamed, a known dangerous criminal and serial rapist who had escaped
from police custody in Durban on 22 May 1998.

[2] Mohamed
escaped from police cells, where he was being held for an
identification parade, through an unlocked security gate. At
the
time he was facing no fewer than 22 charges, including indecent
assault, rape and armed robbery committed in the Durban area.
Within
six days of his escape he resumed his sexual attacks on young women,
this time near Pretoria. The appellant was the third
victim of the
latter series of attacks.

[3] Following
the attack on her the appellant instituted an action for delictual
damages against the State, represented by the respondent,
in the
Transvaal High Court. She claimed that members of the South African
Police Service owed her a legal duty to take reasonable
steps to
prevent Mohamed from escaping and causing her harm and that they
negligently failed to comply with such duty.

[4] At
the trial the question of liability was by agreement separated from
that of the quantum of damages. Vicarious liability, negligence
and
causation were conceded by the respondent so that the only issue
remaining for decision was whether the police owed the appellant
a
legal duty to prevent Mohamed from escaping and causing her harm.

[5] This
issue was further narrowed by the respondent's admission that at the
time of Mohamed's escape the police realised that he
was a dangerous
criminal who was likely to commit further sexual offences; that his
continued detention was necessary for the protection
of the general
public and their personal rights and property; that his escape could
easily have been prevented by ensuring that
the gate was locked and
that in view of the high incidence of escapes from police custody and
sexual attacks on women at the time
of Mohamed's escape, the police
had come to regard these matters as a "policing priority".
The Police are to be commended
for not arguing the unarguable and for
their co-operation in restricting the trial in this way to the true
legal issue.

[6] The
Court a quo
(Swart J) dismissed the appellant's claim and made no order as to
costs. The judgment of the Court a quo
is reported sub nomVan Eeden v Minister of Safety and
Security 2001 (4) SA 646 (T).
Swart J held that he was bound by the decision of this Court in
Carmichele v Minister of Safety and
Security and Another 2001 (1) SA
489 (SCA) and concluded that the police owed no legal duty to the
appellant to act positively in order to prevent
harm. With the leave
of the Court a quo
the appellant now appeals to this Court.

[7] Since
the judgment of the Court a quo
was delivered the Constitutional Court has upheld an appeal against
this Court's judgment in Carmichele.
The judgment of the Constitutional Court is reported sub
nom Carmichele v Minister of Safety and Security and Another
(Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938
(CC)).

[8] The
Constitutional Court held (at paras 32-37) that in applying the
traditional, pre-constitutional test for determining the element
of
wrongfulness for omissions in delictual actions for damages as it had
developed in our common law, this Court had overlooked
s 39(2)
of the Constitution of the Republic of South Africa Act 108 of 1996
("the Constitution"), which requires
all our courts to
develop the common law so as to reflect the spirit, purport and
objects of the Bill of Rights.

The Constitutional Court said (para 57) that it was by
no means clear how the constitutional obligation on the State to
respect,
protect, promote and fulfil the rights in the Bill of Rights
and, in particular, the right of women to have their safety and
security
protected, translated into private law duties towards
individuals, and proceeded to speculate on the different ways of
developing
the common law, in particular the wrongfulness element of
delictual liability. The Court did not undertake the exercise of
developing
the common law itself. It held that the trial court
should not have granted an order for absolution from the instance and
remitted
the case to the High Court for the trial to proceed.

[9] Our
common law employs the element of wrongfulness (in addition to the
requirements of fault, causation and harm) to determine
liability for
delictual damages caused by an omission. The appropriate test for
determining wrongfulness has been settled in a
long line of decisions
of this Court. An omission is wrongful if the defendant is under a
legal duty to act positively to prevent
the harm suffered by the
plaintiff. The test is one of reasonableness. A defendant is under
a legal duty to act positively to
prevent harm to the plaintiff if it
is reasonable to expect of the defendant to have taken positive
measures to prevent the harm.
The court determines whether it is
reasonable to have expected of the defendant to have done so by
making a value judgment, based
inter
alia upon its perception of the legal
convictions of the community and on considerations of policy. The
question whether a legal
duty exists in a particular case is thus a
conclusion of law depending on a consideration of all the
circumstances of the case
and on the interplay of the many factors
which have to be considered. See the judgment of this Court in
Carmichele
at para 7 and recent decisions of this Court in Cape
Town Municipality v Bakkerud 2000 (3)
SA 1049 (SCA) paras 14-17; Cape
Metropolitan Council v Graham 2001 (1)
SA 1197 (SCA) para 6; Olitzki Property
Holdings v State Tender Board and Another
2001 (3) SA 1247 (SCA) paras 11 and 31; BOE
Bank v Ries 2002 (2) SA 39 (SCA)
para 13 and the unreported judgment of this Court in Minister
of Safety and Security v Van Duivenboden,
case no. 209/2001 delivered on 22 August 2002, para 16.

[10] In
applying the concept of the legal convictions of the community the
court is not concerned with what the community regards as
socially,
morally, ethically or religiously right or wrong, but whether or not
the community regards a particular act or form of
conduct as
delictually wrongful. The legal convictions of the community
must further be seen as the legal convictions of the legal policy
makers of the community,
such as the legislature and judges. See
Schultz v Butt 1986 (3) SA 667 (A) at 679 D-E and Premier
Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 422
E-F.

[11] The approach of our courts to the question
whether a particular omission to act should be regarded as unlawful
has always been
an open-ended and flexible one. This approach was
accurately described by Corbett JA in a public lecture entitled
"Aspects of the Role of Policy in the Evolution of our Common
Law" and published in (1987) 104 SALJ 52 where he said (at
56):

"Even in 1975 there were
probably still two choices open to the Court in the Ewels
case. The one was to confine liability for an omission to certain
stereotypes, possibly adding to them from time to time; the
other was
to adopt a wider, more open-ended general principle, which, while
comprehending existing grounds of liability, would
lay the foundation
for a more flexible and all-embracing approach to the question
whether a person's omission to act should be
held unlawful or not.
The Court made the latter choice; and, of course, in doing so cast
the Courts for a general policymaking
role in this area of the law."

[12] The concept of the legal convictions of the
community must now necessarily incorporate the norms, values and
principles contained
in the Constitution. The Constitution is the
supreme law of this country, and no law, conduct, norms or values
that are inconsistent
with it can have legal validity, which has the
effect of making the Constitution a system of objective, normative
values for legal
purposes (Van Duivenboden para 17). The
Constitution cannot, however, be regarded as the exclusive embodiment
of the delictual criterion of the legal convictions
of the community,
nor does it mean that this criterion will lose its status as an agent
in shaping and improving the law of delict
to deal with new
challenges (J.R. Midgley, LAWSA first reissue, vol. 8, part 1, para
52 and P.J. Visser, Some Remarks on the relevance of the Bill of
Rights in the Field of Delict1998 TSAR 529 at 535). The
entrenchment of fundamental rights and values in the Bill of Rights,
however, enhances their protection and affords
them a higher status
in that all law, State actions, court decisions and even the conduct
of natural and juristic persons may be
tested against them and all
private law rules, principles or norms, including those regulating
the law of delict, are subjected
to, and thus given content in the
light of the basic values in the Bill of Rights (Neethling, Potgieter
and Visser, Law of Delict, 4 ed, pp. 21-23).

[13] The fundamental values enshrined in the
Constitution include human dignity, the achievement of equality and
the advancement of
human rights and freedoms, non-racialism and
non-sexism (s 1(a) and (b) of the Constitution). In terms of
s 12(1)(c)
everyone has the right to freedom and security of the
person, which includes the right to be free from all forms of
violence from
either public or private sources.

For present purposes it is not necessary to decide
whether the right to be free from violence constitutes a separate
entitlement
or whether it is merely an explicit element of the right
to freedom and security of the person. Freedom from violence is
recognised
as fundamental to the equal enjoyment of human rights and
fundamental freedoms (S v Baloyi 2000 (2) SA 425 (CC)
para 13). Sec 12(1)(c) requires the State to protect
individuals, both by refraining from such
invasions itself and by
taking active steps to prevent violation of the right. The
subsection places a positive duty on the State
to protect everyone
from violent crime. See Baloyi para 11, De Waal, Currie and
Erasmus The Bill of Rights Handbook 4 ed (2001) at 258; Heléne
Combrinck Positive State Duties to Protect Women from Violence :
Recent South African Developments(1998) 20 Human Rights
Quarterly 666 at 683; Carpenter The right to physical safety as a
constitutionally protected human right; Suprema Lex : Essays
on the Constitution presented to Marinus Wiechers (1998) 139 at
144; Pieterse, The right to be free from public or private
violence after Carmichele2002 SALJ 27 at 29).

[14] Section 12 should be read with s 7(2)
of the Constitution which imposes a duty on the State to "respect,
protect, promote
and fulfil the rights in the Bill of Rights".
As the Constitutional Court said in Carmichele (para 45), the
provisions of our Constitution point in the opposite direction to the
due process clause of the United States Constitution,
which was held
in De Shaney v Winnebago County Department of Social Services(1988) 489 US 189 not to impose affirmative duties upon the State.
In Van Duivenboden the majority of this Court concluded (para
20) that while private citizens might be entitled to remain passive
when the constitutional
rights of other citizens are under threat and
while there might be no similar constitutional imperatives in other
jurisdictions,
in this country the State has a positive
constitutional duty to act in the protection of the rights in the
Bill of Rights.

[15] The Constitutional Court has held in both
Baloyi (para 13) and Carmichele (para 62) that the
State is, furthermore, obliged under international law to protect
women against violent crime and against the
gender discrimination
inherent in violence against women. This obligation was imposed on
the State by s 39(1)(b) of the Constitution,
read with the
preamble to the Universal Declaration of Human Rights; article
4(d) of the Declaration on the Elimination of Violence against
women and article 2 of the Convention on the Elimination of
All Forms of Discrimination against women (Heléne Combrink
op cit 671-681).

[16] Section 205(3) of the Constitution reads:

"The objects of the police
service are to prevent, combat and investigate crime, to maintain
public order, to protect and secure
the inhabitants of the Republic
and their property, and to uphold and enforce the law."

Under the
South African Police Service Act 68 of 1995 the functions of the
police include the maintenance of law and order and the prevention of
crime. The police service is thus one
of the primary agencies of the
State responsible for the discharge of its constitutional duty to
protect the public in general
and women in particular against the
invasion of their fundamental rights by perpetrators of violent crime
(Minister of Law and Order v Kadir
1995 (1) SA 303 (A) at 321 F and the Constitutional Court's
judgment in Carmichele
(para 62)).

[17] In Van
Duivenboden the majority of this Court
emphasised (para 20) that the very existence of the State's
constitutional duty to act in protection
of the rights in the Bill of
Rights necessarily implies the norm of public accountability, and
pointed out that s 41(1) of
the Constitution expressly provides
that all spheres of government and all organs of State within such
sphere must provide government
which is not only effective,
transparent and coherent, but also government which is accountable.
The Court held (para 21) that
this norm must necessarily assume an
important role in determining whether a legal duty ought to be
recognised in any particular
case.

[18] Our courts have in a
number of recent decisions recognised that the entrenchment of the
right to be free from violence in s 12(1)(c),
read with
s 205(3), would, in appropriate circumstances, be strongly
indicative of a legal duty resting on the police to act
positively to
prevent violent crime. In Van Duivenboden
this Court held that certain police officers who were in possession
of information that reflected adversely upon the fitness of
a person
to possess firearms owed a legal duty to members of the public to
take reasonable steps to act on that information in
order to prevent
harm. In the majority judgment Nugent JA, after referring to the
entrenchment of the rights to equality, personal
freedom and privacy,
to the State's positive duty under s 7 to act in protection of
these rights and to the principle of public
accountability, went on
to say (para 21):

"However where the state's
failure occurs in circumstances that offer no effective remedy other
than an action for damages
the norm of accountability will, in my
view, ordinarily demand the recognition of a legal duty unless there
are other considerations
affecting the public interest that outweigh
that norm."

It must be pointed out that in Van
Duivenboden Marais JA held in a minority
judgment that in the particular circumstances of that case the police
were under a legal duty to act
even on an application of the
traditional test for delictual wrongfulness and that it was not
necessary to have regard to the Constitution.
Similarly, in Seema
v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng
2002 (1) SA 771 (T) the Court held that the responsible
authorities and personnel at a mental hospital owed a legal duty to
members of the public to take reasonable steps to prevent mental
patients from leaving the hospital premises and causing them harm.
The Court relied on two factors in particular as indicative of the
existence of a legal duty, namely that the defendant was in
control
of potentially dangerous patients and that it could easily have taken
proper preventative measures such as fencing or guarding
the
premises. The Court did not find it necessary to rely on the
Constitution in finding that a legal duty existed.

[19] An important
consideration in favour of recognising delictual liability for
damages on the part of the State in circumstances such
as the present
is that there is no other practical and effective remedy available to
the victim of violent crime. Conventional
remedies such as reviewand mandamus
or interdict do not afford the victim of crime any relief at all.
The only effective remedy is a private law delictual action
for
damages.

[20] In England the courts
have on occasion declined to impose liability in delict on public
authorities such as the police for the
negligent performance of their
functions on the ground that it would not be in the public interest
as it would inhibit the proper
performance of their primary function
of providing public services in the interest of the community as a
whole and lead to defensive
policing and a diversion of the resources
available for combating crime. See Hill v
Chief Constable of West Yorkshire[1987] UKHL 12; [1988] 2
All ER 238 (HL) at 243 h-j and 244 b-c.

In
Carmichele the
Constitutional Court pointed out (paras 46-48), that in a recent
decision of the House of Lords in Barrett v
Enfield London Borough Council[1999] 3 All
ER 193 (HL) at 199 d-j a more flexible approach to delictual claims
against public authorities has emerged, and that in two cases the
European Court of Human Rights has found against the "immunity
approach" of the English Courts (Osman v
United Kingdom[1998] ECHR 101; (2000) 29 EHRR 245 para 142
and Z and Others v United Kingdom[2001] ECHR 333; (2001) 10 BHRC 384 para 111). The Constitutional Court in Carmichele
went on to say (para 49) that a public interest immunity absolving
the respondents from liability that they might otherwise have
in the
circumstances of that case, would be inconsistent with our
Constitution and its values.

[21] The considerations upon
which the English Courts have based their approach are in any event
not applicable to a case such as the
present. This case does not
concern the manner in which the police performed their functions
relating to the detection of crime
and the apprehension of criminals.
These are matters in which public policy may well require that
police should have a wide discretion.
This case is concerned solely
with the control that the police are required to exercise over a
known dangerous criminal in police
custody, in other words with the
operational implementation of their own policies and not with the
policy itself. The recognition
of a legal duty in such circumstances
will not disrupt the efficient functioning of the police, nor will it
necessarily require
additional resources. There is accordingly no
reason to fear that it might inhibit the proper performance by the
police of their
primary functions or lead to defensive policing.

[22] Counsel for the
respondent submitted that the imposition of a legal duty on the
police in the present case could open the 'floodgates'
of litigation
and result in limitless liability on public authorities and
functionaries. He submitted that it was for this reason
necessary
first to set the limits to delictual liability and then to determine
in each case whether the facts of that case fell
within those limits.
I do not agree with counsel's submissions. As has been pointed out
earlier, our courts do not confine liability
for an omission to
certain stereotypes but adopt an open-ended and flexible approach to
the question whether a particular omission
to act should be held
unlawful or not. In deciding that question the requirements for
establishing negligence and causation provide
sufficient practical
scope for limiting liability (Van Duivenboden
para 19).

[23] The requirement of a special relationship
between a plaintiff and defendant as an absolute pre-requisite for
imposing a legal duty
can, in the light of the State's constitutional
imperatives which I have set out above, no longer be supported. To
do so would
mean that the common law does not adequately reflect the
spirit, purport and objects of the Bill of Rights. Carpenter op
cit 151 describes this requirement as 'altogether out of step
with our present constitutional system'. It should not be regarded
as
anything more than one of several factors to be considered in
deciding the reasonableness of an omission to prevent violent conduct
(Pieterse op cit 37).

[24] In all the circumstances of the present case
I have come to the conclusion that the police owed the appellant a
legal duty to act
positively to prevent Mohamed's escape. The
existence of such a duty accords with what I would perceive to be the
legal convictions
of the community and there are no considerations of
public policy militating against the imposition of such a duty. To
sum up,
I have reached this conclusion mainly in view of the State's
constitutional imperatives to which I have referred; the fact that
the police had control over Mohamed who was known to be a dangerous
criminal and who was likely to commit further sexual offences
against
women should he escape, and the fact that measures to prevent his
escape could reasonably and practically have been required
taken by
the police (Neethling and Potgieter op cit 64 and
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347
(A).

The police accordingly acted wrongfully and in view of
the admission of negligence, vicarious liability and causation the
State
must be held liable for any damages suffered by the appellant.

[25] In the result the appeal is upheld with
costs, such costs to include the costs of two counsel. The judgment
of the Court a quo is altered to read:

"1. It is declared that the
conduct of the defendant's servants was wrongful and that the
defendant is liable to the plaintiff
for such damages that she is
able to prove.

2. The defendant is ordered to
pay the costs of the action including the costs of two counsel."